Long v. Commissioner Of Social Security Administration
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING THE 17 REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE: 11 Plaintiff's motion for summary judgment is DENIED; 14 Defendant's motion for summary judgment is DENIED. It is further ordered that this case be REMANDED to the Commissioner for further fact finding in accordance with the magistrate judges report and recommendation. It is ORDERED that this civil action be DISMISSED and STRICKEN from the active docket of this Court. Because the parties have failed to object, they have waived their right to seek appellate review of this matter. The Clerk is DIRECTED to enter judgment on this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 6/6/2017. (copy to counsel via CM/ECF) (nmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
EVELYN LONG, obo
JESSE W. LONG, deceased,
Civil Action No. 5:16CV143
COMMISSIONER OF SOCIAL
MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE MAGISTRATE JUDGE
In this case, the plaintiff, by counsel, seeks judicial review
of the defendant’s decision to deny his claims under Title II and
Title XVI of the Social Security Act.
The plaintiff, Jesse W.
Long, is deceased, and this civil action has been brought on his
behalf by Evelyn Long.
The plaintiff submitted an application for
Title II benefits on September 7, 2012, and an application for
Title XVI benefits on September 28, 2012. Both applications allege
disability beginning September 2, 2012.
His claim was denied
initially and then again on reconsideration.
filed a written request for a hearing.
The plaintiff then
The Administrative Law
Judge (“the ALJ”) held a hearing on May 5, 2015.
This memorandum opinion and order contains only the most
relevant procedural and factual information. For more extensive
background information, see ECF No. 17.
To determine whether the plaintiff was disabled, the ALJ used
a five-step evaluation process pursuant to 20 C.F.R. §§ 404.1520
Using that process, the ALJ made the following
findings: (1) the plaintiff had not engaged in substantial gainful
activity since September 2, 2012, the date of the alleged onset of
the plaintiff’s disability; (2) the plaintiff had the following
severe impairments: history of severe trauma to left leg due to
gunshot injury; peripheral neuritis, peripheral cyanosis, and
peripheral vascular disease of the left ankle and foot; status post
injuries from a 2012 motor vehicle accident-hemorrhagic shock,
splenectomy, acute traumatic respiratory failure, bilateral rib
degenerative change of the thoracic and lumbar spines; recurrent
phlebitis; gastritis; anxiety disorder; social anxiety; cognitive
disorder; borderline intellectual functioning; and polysubstance
abuse; (3) none of the plaintiff’s impairments met or medically
equaled the severity of any of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1; (4) the plaintiff is unable to
functional capacity, there are jobs that exist in significant
numbers in the national economy that the [plaintiff] can perform.”
disability as defined under the Social Security Act.
The ALJ issued the unfavorable decision to the plaintiff on
September 25, 2015.
The plaintiff had a long history of esophagus
problems, but there was no evidence of esophageal cancer at the
time of the ALJ’s decision.
A showing of esophageal cancer would
have qualified the plaintiff as disabled.
The ALJ’s decision was
based, at least in part, on a lack of evidence of cancer.
plaintiff passed away from a drug overdose one month after the
ALJ’s decision, and an autopsy revealed esophageal cancer.
plaintiff appealed to the Appeals Council and submitted the autopsy
to the Appeals Council as additional evidence. The Appeals Council
added the autopsy to the record but declined review. The plaintiff
then brought his claim to this Court.
The plaintiff and the defendant both filed motions for summary
The plaintiff also responded to the defendant’s motion
for summary judgment. The plaintiff argues that he was disabled at
the time of his death because he qualified as disabled under
Listing 13.16 (A) as a result of his esophageal cancer.
contends that this finding undermines the ALJ’s determination and
renders it unsupported by substantial evidence.
argues that the evidence demonstrated that, at the close of the
relevant period on September 25, 2015, the plaintiff did not have
plaintiff’s autopsy does not relate to the relevant period.
The magistrate judge entered his report and recommendation on
April 20, 2017, to which neither party filed objections.
magistrate judge recommends that this Court deny both parties’
motions for summary judgment and remand the civil action.
magistrate judge found that the defendant may infer that an
impairment existed before evidence of it is actually discovered.
Thus, the defendant may consider the new evidence from the autopsy
to determine whether the impairment of esophageal cancer existed
during the relevant period, even though the autopsy did not show
the cancer until after the close of the relevant period.
conflicts with the defendant’s decision, and no fact finder has
made any findings as to whether the new evidence can be reconciled
For the reasons set forth below, the report and
recommendation of the magistrate judge is affirmed and adopted.
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
recommendation to which objection is timely made.
As to those
portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are clearly erroneous.
As the United States Court of Appeals for the Fourth Circuit
has held, “Under the Social Security Act, [a reviewing court] must
uphold the factual findings of the Secretary if they are supported
by substantial evidence and were reached through application of the
correct legal standard.”
Craig v. Chater, 76 F.3d 585, 589 (4th
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.”
credibility determinations in evaluating whether a decision is
supported by substantial evidence; ‘[w]here conflicting evidence
allows reasonable minds to differ,’ we defer to the Commissioner’s
Thompson v. Astrue, 442 F. App’x 804, 805 (4th Cir.
2011) (quoting Johnson v. Barnhart, 434 F.3d 650, 653 (4th Cir.
Further, as the Supreme Court of the United States stated
in United States v. United States Gypsum Co., “a finding is
‘clearly erroneous’ when although there is evidence to support it,
the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed.”
333 U.S. 364, 395.
After reviewing the record before this Court, no clearly
erroneous findings exist concerning the magistrate judge’s report
and recommendation. “In cases such as this, where the claimant has
submitted additional evidence to the Appeals Council, and the
Appeals Council considered that evidence, this court must review
the record as a whole, including the new evidence, to determine
whether substantial evidence supports the Commissioner’s findings.”
Dunn v. Colvin, 973 F. Supp. 2d 630, 645 (W.D. Va. 2013) (citing
Wilkins v. Sec’y, Dep’t of Health and Human Servs., 953 F.2d 93,
95-96 (4th Cir. 1991)). Thus, the magistrate judge correctly found
that the sole issue on appeal is whether there is substantial
evidence to support the defendant’s decision despite the discovery
The magistrate judge also properly found that the defendant
may consider the new evidence to determine whether the esophageal
cancer existed during the relevant period, even though the evidence
was discovered after the close of the relevant period.
Can we establish the existence of a disabling impairment
prior to the date of the evidence that shows the cancer
satisfies the criteria of a listing?
consider factors such as:
The type of cancer and its location.
The extent of involvement when the cancer was first
20 C.F.R. Part 404, Subpart P, Appendix 1, Section 13.00(J).
Additionally, in a similar case, the Fourth Circuit explained
that “[a]ssessing the probative value of competing evidence is
quintessentially the role of the fact finder.
court] cannot undertake it in the first instance.”
Astrue, 662 F.3d 700, 707 (4th Cir. 2011).
evidence conflicts materially conflicts with the Appeals Council’s
decision to deny review, the record must provide “an adequate
explanation of the Commissioner’s decision.”
magistrate judge correctly concluded that remand is necessary for
the ALJ to make factual findings as to whether the subsequent
Accordingly, this Court finds no error in
the determination of the magistrate judge and thus upholds his
For the reasons above, the magistrate judge’s report and
recommendation (ECF No. 17) is hereby AFFIRMED and ADOPTED.
the plaintiff’s motion for summary judgment (ECF No. 11) is DENIED
and the defendant’s motion for summary judgment (ECF No. 14) is
It is further ORDERED that this case be REMANDED to the
Commissioner for further fact finding in accordance with the
magistrate judge’s report and recommendation.
It is ORDERED that
this civil action be DISMISSED and STRICKEN from the active docket
of this Court.
Finally, this Court finds that the parties were properly
advised by the magistrate judge that failure to timely object to
the report and recommendation in this action would result in a
waiver of appellate rights.
Because the parties have failed to
object, they have waived their right to seek appellate review of
this matter. See Wright v. Collins, 766 F.2d 841, 844-45 (4th Cir.
IT IS SO ORDERED.
The Clerk is DIRECTED to transmit a copy of this memorandum
opinion and order to counsel of record herein. Pursuant to Federal
Rule of Civil Procedure 58, the Clerk is DIRECTED to enter judgment
on this matter.
June 6, 2017
/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE
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